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A Brantford judge ruled Friday that he would not interfere with a Six Nations mother’s decision to seek traditional healing rather than chemotherapy for her 11-year-old daughter with leukemia.

In what is being called a landmark and precedent-setting case, Ontario Court Justice Gethin Edward dismissed an application by McMaster Children’s Hospital to force the child into care to receive chemotherapy.

“I cannot find that (the girl) is a child in need of protection when her substitute decision-maker has chosen to exercise her constitutionally protected right to pursue their traditional medicine over the (hospital’s) stated course of treatment of chemotherapy. The application is dismissed,” Edward wrote in a 15-page judgment.

Six Nations elected Chief Ava Hill and New Credit elected Chief Bryan Laforme told a horde of media outside the courthouse that they were happy with the outcome.

The court case had pitted McMaster Children’s Hospital (under the auspices of Hamilton Health Sciences) against Brant Family and Children’s Services (Brant FACS) in regard to a Six Nations girl diagnosed with acute lymphoblastic leukemia.

The girl, whose name is protected by a publication ban, began a regimen of chemotherapy treatment at McMaster in mid-August before her mother withdrew consent on Aug. 27. The mother then removed the girl from hospital on Sept. 8, talking of a plan to take the child to Florida for alternative therapy involving herbal treatments and dietary and lifestyle changes.

Communication between hospital doctors and Brant Family and Children’s Services resulted in the family agency deciding not to intervene.

Ongoing concern for the girl’s health prompted the hospital to apply to the court for an order forcing the agency to take action but as the parties were before the judge on Sept. 17, the girl and her mother crossed the border.

Court heard testimony on seven disjointed days in late September and early October, followed by legal arguments on Oct. 16 and Oct. 24.

Issues included a Brant FACS argument that the case should have been heard in front of the Consent and Capacity Board and that the child’s capacity, or lack thereof, to provide informed consent regarding treatment had not been properly assessed by the hospital.

Justice Edward concluded that the hospital treatment team was correct in concluding that the girl indeed lacked the ability to make life and death decisions, given evidence of her inability to describe her symptoms or answer questions asked by doctors, and instead constantly looking to her mother for responses.

The judge ruled, based on precedents, that the court was the appropriate forum to decide the case.

Edward then turned to the crux of the matter, being a determination of whether the mother’s decision to pursue traditional medicine was an aboriginal right, as protected by the Constitution.

He referred to a previous Supreme Court decision which explored and defined aboriginal rights as those involving a practice, custom or tradition integral to the distinctive aboriginal culture which can be shown to have continuity with pre-European contact eras.

Evidence presented at the hearing included that from a McMaster anthropology professor who introduced documents relating to the history and use of traditional medicine in First Nations societies, as well as a medical doctor schooled in “western medicine” who shares a Six Nations practice with a woman who practices traditional medicine.

Edward found that “traditional medicine continues to be practiced on Six Nations as it was prior to European contact, and in this court’s view there is no question it forms an integral part of who the Six Nations are.”

The judge also addressed the issue of integrity of belief, noting that the mother’s decision to remove her daughter from chemotherapy was “not an eleventh hour epiphany” but was steeped in deeply-held traditional longhouse beliefs rooted in their culture.

In closing, Edward – himself of some Six Nations ancestry and a descendant of Chief Joseph Brant – concluded the mother’s decision to pursue traditional medicine for her daughter “is her aboriginal right.”

The hospital released a statement Friday, which read: “Hamilton Health Sciences (HHS) would like to acknowledge that this court case has been a difficult circumstance for everyone involved. Our motivation has always been and remains that this child receives life-saving medical treatment in a timely manner.

“The judgment today acknowledged that the process we chose was appropriate. We have always supported this family’s decision to use traditional aboriginal healing practices in conjunction with conventional medical treatment. We remain committed to support this child’s treatment with compassion and respect.”

Brant FACS executive director Andrew Koster said he felt “proud to be part of a landmark decision” regarding First Nations rights.

He said his “heart goes out” to the girl and her family and he is “hoping everything works out.”

Sally Rivers, director of aboriginal services with Brant FACS, said she was pleased with the decision but found it “shocking” that the hospital “couldn’t step down from its paternalistic view of ‘we know better.’”

When asked “What if the doctors are right?” Rivers said the decision on medical care has been made by the girl’s family and is supported by the Six Nations community.

“I hope the best for her,” Rivers said.

The girl is now back home on Six Nations and a family member has said she is “doing better and better every day.”